When the Supreme Court takes up a religion case, it often prompts overheated charges: There is a war against Christianity under way; or civil liberties groups are trying to turn this into a secular nation. The court is scheduled to hear arguments on Wednesday in a case that raises none of these issues — even though Americans may well be treated to another round of scare stories.
The narrow question is whether a large cross that has been placed on federal land violates the establishment clause of the First Amendment, the founders’ direction that there must be a wall of separation between church and state. The court should rule that it does.
The Veterans of Foreign Wars erected a cross in 1934 in San Bernardino County, Calif. — in what is now the Mojave National Preserve — to honor America’s war dead. Since then, the cross has been replaced several times, most recently around 1998. Its religious significance is clear, but the National Park Service has not allowed other religions to add symbols. In 1999, the park service denied a request by an individual to place a Buddhist memorial in the area. The cross has also been the site of Easter sunrise services for more than 70 years.
Frank Buono, a former assistant superintendent of the preserve who said that he still visits regularly, sued to challenge the display’s constitutionality.
The case comes to the Supreme Court in an unusual form. When a Federal District Court ruled that the cross violated the establishment clause, Congress transferred the property under it to a veterans’ group in exchange for other property. In a second round of litigation, a Federal District Court ruled that the land transfer continued the constitutional violation. The United States Court of Appeals for the Ninth Circuit, in San Francisco, affirmed.
The Supreme Court will first consider whether Mr. Buono has standing to challenge the cross. The cross’s supporters argue that he has not really been injured and, therefore, should not be able to sue. But as someone who was in contact with the cross and was offended by its presence, he was injured. More precisely, though, in this case, Mr. Buono has won a court injunction against the cross, and Congress’s land transfer interferes with his injunction. He has a right to challenge the transfer.
On the merits, the appeals court was right that the cross must come down. By allowing a Christian cross, and not symbols of other faiths, on federal land, the government was favoring one religion over others. Also, Congress has designated the cross as a national memorial, which means that it continues to have official government endorsement.
The land transfer was mere window-dressing. Bypassing normal procedures for disposing of government land, Congress gave the land to an entity it understood would keep up the cross, and it provided that the land would be returned if it was not used as a memorial.
Religious symbolism of this kind on government land is, by its very nature, exclusionary. Allowing only a cross to stand over the memorial sends a message to Jews, Muslims, Buddhists and others that their sacrifices, and their family members’ sacrifices, are not appreciated or mourned.
It also sends a message that state and church are intertwined. A single cross does not, by itself, mean America has an established religion, but if the Supreme Court stops caring that the government is promoting a particular religion, we will be down the path toward having one.
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